Summary
In Gilbert, the pro se plaintiff alleged that she had loaned her son $20,000 and placed an additional sum into a bank account in her son's name, none of which was repaid.
Summary of this case from Ackerman v. AckermanOpinion
02 Civ. 3728 (DLC)
November 25, 2003
Lila Gilbert, Roosevelt Island, NY, for Plaintiff pro se
Steven Talan, Steven Bilkis Assoc., Baldwin, NY, for Defendants
OPINION ORDER
Plaintiff pro se Lila Gilbert ("Plaintiff") brings this lawsuit against her son Dale Gilbert and daughter-in-law Sandee Gilbert ("Defendants"), asserting claims and seeking damages arising from certain financial transactions and the Defendants' alleged mistreatment of Lila Gilbert. The claims are best described as allegations of elder abuse, breach of contract, unjust enrichment and conversion. The Defendants move to dismiss the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P.
The case was referred to Magistrate Judge James C. Francis IV for general pretrial purposes. On August 28, 2003, Judge Francis issued a Report and Recommendation advising that the motion to dismiss be granted as to the elder abuse claim, and denied as to the remainder of the complaint. Judge Francis also issued an August 28 Order denying Lila Gilbert's motion to compel discovery. Judge Francis identified a defect in subject matter jurisdiction, specifically, that the Plaintiff's potentially viable claims based on the 1991 and 1992 financial transactions fall below the threshold amount required in a diversity action. He advised that the parties would be given an opportunity to address this defect if the Report were adopted.
Any objections to the Report Recommendation were due by September 8, 2003. By submission dated September 12, 2003, Plaintiff objects to Judge Francis's August 27 Order regarding discovery, and includes an objection to the dismissal of the elder abuse claims. Defendants did not submit objections.
The facts set forth in the Report and summarized here are drawn from the Complaint and from allegations contained in the Plaintiff's response to the motion. The allegations are taken as true for purposes of this motion to dismiss. See Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Lila Gilbert, who was 87 years old at the time of filing, is in failing health. She resides in New York, and visits her son and daughter-in-law in California. In 1991, Lila Gilbert loaned her son $20,000, for which she has not received repayment. At the time of the loan, she expected that $10,000 would be secured by the Defendants' condominium, although she later learned that the condominium was already providing security for a loan from Sandee Gilbert's mother to the Defendants. In 1992, Lila Gilbert placed a sum of money into an Albany, New York bank account in Dale Gilbert's name. The Albany account was intended by Lila Gilbert to fund building permits and supplies needed for her construction of a house in Albany. Although she eventually abandoned the construction project, she understood that Dale Gilbert was holding the balance of the account for her, and that the funds remained hers to use when needed.
Dale and Sandee Gilbert have not repaid the $20,000 loan nor the funds from the Albany account, nor have they indicated any intention to repay. Defendants did, however, pay Lila Gilbert $100 during the pendency of this litigation. The complaint also alleges that the Defendants were verbally abusive toward Lila Gilbert when discussing the subject of repayment, and that they mistreated her while she was visiting them in California.
Discussion
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). The Court shall make a de novo determination of those portions of the Report to which objection is made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). "To accept to the report and recommendation by a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985; see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991).
As the Report states, neither federal nor New York law recognizes a cause of action for "elder abuse." California's civil cause of action for elder abuse is available only to residents of the state of California.See Cal. Welf. Inst. Code § 15610.27. Plaintiff's objections, like the complaint, do not identify any legal basis for the elder abuse claim. Lila Gilbert does not claim to be a resident of California, and consequently does not have a right of action under that state's statute. Since there is no cause of action for this claim, it is dismissed.
The remaining claims, each of which relates to the unpaid loans made in 1991 and 1992, must be dismissed. Under New York law, Plaintiff's claims are subject to a six-year statute of limitations. See C.P.L.R. § 213 ("an action for which no limitation is specifically prescribed by law . . . must be commenced within six years"). Plaintiff contends that Dale Gilbert's payment of $100 in July 2002 constitutes a partial repayment of the loan sufficient to revive the statute of limitations.
If a party is proceeding pro se, the court must "construe [the] pleadings broadly, and interpret them to raise the strongest arguments they suggest." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000); see also Cucco v. Moritsucru, 222 F.3d 99, 112 (2d Cir. 2000). On a motion to dismiss, the court may consider "documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit."Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000). Where a plaintiff is proceeding pro se, the court may consider allegations contained in the plaintiff's response to the motion to dismiss. See Torrico v. IBM, 213 F. Supp.2d 390, 399 n. 4 (S.D.N.Y. 2002).
Although the Report properly considered Lila Gilbert's allegation that Dale Gilbert paid her $100 in July 2002, it committed clear error in concluding that that payment alone is legally sufficient to revive the statute of limitations. "The statute can be tolled only if a debtor pays the creditor under circumstances indicating an unequivocal intention to pay the balance." Schmidt v. Polish People's Republic, 742 F.2d 67, 72 (2d Cir. 1984); see also Lew Morris Demolition Co. v. Board of Educ., 40 N.Y.2d 516 (1976); Erdheim v. Gelfman, 303 A.D.2d 714, 714-15 (1st Dep't 2003). Even read in the light most favorable to her, Plaintiff's submissions are insufficient to state a timely claim. The complaint alleges throughout that the Defendants had not made any attempt to repay the loans, and in fact had not even acknowledged any debt. In the context of these allegations, the payment of $100, unaccompanied by any admission of the debt or declaration of intent to pay, is insufficient to constitute the "absolute and unqualified acknowledgment by the debtor of more being due" required to toll the statute of limitations. Erdheim, 303 A.D.2d at 715. The statute of limitations thus expired long before this action was filed.
Finally, there is no indication that the discovery Lila Gilbert continues to seek would enable her to amend the Complaint to state a claim. Instead, the September 12 objections, like the discovery requests themselves, seek materials relating to the Defendants' alleged misappropriation and dissipation of funds belonging to the Plaintiff. The discovery requests do not seek proof of payment or intention to pay, and instead reflect Plaintiffs' continuing belief that Defendants' have held and used funds without acknowledging or intending to pay any debt owed to her.
Conclusion
The motion to dismiss is granted. The Clerk of Court shall close the case.
SO ORDERED.